Chan v The Queen

[2002] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   CHAN -v- THE QUEEN [2002] WASCA 50

CORAM:   KENNEDY J

OWEN J
STEYTLER J

HEARD:   15 MAY 2001

DELIVERED          :   21 DECEMBER 2001

PUBLISHED           :  14 MARCH 2002

FILE NO/S:   CCA 280 of 2000

CCA 25 of 2001

BETWEEN:   FRANCES MARY CHAN

Appellant/Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Obtaining property with intent to defraud by deceit or fraudulent means - Whether the mind of the manager of the mortgage lending division of trustee company stood as that of the company

Evidence - Character evidence - Evidence not relating to reputation of accused - Trial Judge declining to direct jury with respect to relevance of good character as affecting the credibility of the accused

Evidence - Failure of prosecution to call a witness - Whether trial Judge erred in not directing the jury that they could infer that the witness would not have assisted the case for the prosecution

Evidence - Burden of proof - Whether trial Judge's direction implied some onus of proof placed upon the accused

Evidence - Whether accomplice warning required - Not put to witnesses that they might be accomplices - No basis shown for witnesses having any knowledge of an intention on part of the accused to defraud company by deceit or fraudulent means - No requirement that trial Judge should give corroboration warning

Criminal law and procedure - Sentencing - Obtaining money with intent to defraud by deceit or fraudulent means - Stealing - Six offences - Estate agent - Breach of trust - Offending spread over a period of two years and three months - Effective sentence of 9 years' imprisonment with eligibility for parole not set aside as excessive

Legislation:

Nil

Result:

Appeal against convictions dismissed
Leave to appeal against sentences allowed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant/Applicant      :     Mr I L K Marshall

Respondent:     Mr I S Jones

Solicitors:

Appellant/Applicant      :     E M Stanley & Co

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Attwood v The Queen (1960) 102 CLR 353

Davies v Director of Public Prosecution [1954] AC 378

Melbourne v The Queen (1999) 198 CLR 1

Meridian Global Funds Management Asia Pty Ltd v Securities Commission [1995] 2 AC 500

R v Apostilides (1984) 154 CLR 563

R v Barrick (1985) 81 Cr App Rep 78

R v Bellis [1966] 1 WLR 234

R v Birch (1993) 69 A Crim R 181

R v Carreras (1992) 60 A Crim R 402

R v Evans [1964] VR 717

R v Farquhar, unreported; CCA SCt of NSW; 29 May 1985

R v Garner, unreported; CCA SCt of NSW; 25 August 1983

R v Johnson & Edwards (No 2) [1982] Qd R 555 at 560

R v Laverty [1970] 3 All ER 432

R v Lawson [1960] VR 37

R v Lucas [1973] VR 693

R v Moon [1969] 1 WLR 1705

R v Murphy (1985) 63 ALR 53

R v Nilon (1981) 5 A Crim R 385

R v Rowton (1865) Le & Ca 520; 169 ER 1497

R v Rozeik [1996] 1 Cr App R 260

R v Sullivan (1945) 30 Cr App R 132

R v Tirado (1974) 59 Cr App R 80

R v Trimboli (1979) 1 A Crim R 73

R v Wasow, unreported; CCA SCt of NSW; 27 June 1985

Richardson v The Queen (1974) 131 CLR 116

Stockbridge, unreported; CCA SCt of WA; Library No 6798; 23 July 1987

In re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456

Re T and Director of Youth & Community Services [1980] 1 NSWLR 392

Whitehorn v The Queen (1983) 152 CLR 657

Case(s) also cited:

Carden v The Queen (1992) 8 WAR 296

Clemesha v The Queen [1978] WAR 193

Haman v The Queen [2000] WASCA 369

King v The Queen [1999] WASCA 9

Medcraft v The Queen [1982] WAR 33

R v Clark (1991) 6 WAR 137

R v Grail (1944) 30 Cr App Rep 81

R v R, unreported; CCA SCt of SA; 23 December 1992

R v Wilkinson, unreported; CCA SCt of WA; Library No 960035; 25 January 1996

R v Winters (1988) 145 LSJS 318

Tan v R [1979] WAR 149

1. KENNEDY J:  Frances Mary Chan ("the appellant") was presented in the District Court of Western Australia on an indictment charging the following six offences:

   (1)that on or about 6 August 1991 at Perth she stole money, namely the sum of $72,000, the property of Val Waldron, which had then lately been received by the appellant with a direction that the same should be applied for the purchase of real estate at Bibra Lake;

   (2)that on or about 16 October 1991 at Perth she stole money, namely the sum of $22,000, the property of Val Waldron, which had then lately been received by the appellant with a direction that the same should be applied for the purchase of real estate at Bibra Lake;

   (3)that on or about 1 November 1991 at Perth she stole money, namely the sum of $32,150, the property of Kenneth Roberty [sic] Waldron, which had then lately been received by the appellant with a direction that the same should be applied for the purchase of real estate at Bibra Lake;

   (4)that on or about 13 March 1992 at Perth she and Seng Fai Chan, with intent to defraud, by deceit or fraudulent means, obtained property, namely money in the sum of $560,000, from R & I Trustees Ltd;

   (5)that on or about 13 March 1992 at Perth she and Seng Fai Chan, with intent to defraud, by deceit or fraudulent means, obtained property, namely money in the sum of $23,049.64, from Roma Anne Gaglio;

   (6)that on or about 24 November 1993 at Perth she stole money, namely the sum $85,533.55, the property of Shirley Muriel Tailor.

2. Although Seng Fai Chan, who was at all material times the appellant's solicitor, was jointly charged with the appellant on counts 4 and 5, he was not tried with the appellant.  He was, however, called as a witness on her behalf.  Mr Chan was not related to the appellant.

3. The appellant pleaded not guilty to each count in the indictment.  After a trial lasting 14 days, the jury found the appellant guilty on each count.  On each of counts 1, 2, 3, 5 and 6, the learned trial Judge sentenced the appellant to a term of imprisonment of 2 years.  On count 4 in the indictment, his Honour sentenced the appellant to a term of imprisonment of 5 years.  He directed that each of the sentences on counts 2, 3 and 5 should be served concurrently with the sentence imposed in respect of count 1, and he ordered that the sentence of 5 years on count 4 should be served cumulatively upon the sentence on count 1.  In relation to the sentence on count 6, he directed that it be served cumulatively on the sentence imposed in respect of counts 1 and 4.  This resulted in an effective head sentence of 9 years' imprisonment.  The sentences on counts 1, 2, 3 and 5 were backdated to commence on 1 December 2000, being the date on which the appellant had been remanded in custody for sentencing.  His Honour directed that the appellant be eligible for parole on each of the sentences.

4. The maximum penalty for each of the offences charged in counts 1, 2 and 3 is 10 years' imprisonment.  The maximum penalty for each of the offences charged in counts 4, 5 and 6 is 7 years' imprisonment.

5. The appellant appealed against each of her convictions, and she sought leave to appeal against the sentences imposed upon her.  On 21 December 2001, this Court dismissed the appellant's appeal against her convictions and, whilst granting her leave to appeal against her sentences, the Court dismissed that appeal.  It was announced that our reasons would be published at a later date.  The following are my reasons for joining in the orders made.

6. The first three counts in the indictment concerned three payments of sums of money to the appellant, two of them having been made by Mrs V Waldron and one by her husband, Mr K R Waldron.  At the time of the trial, Mrs Waldron was aged 79.  Her husband, who was 10 years older than Mrs Waldron, died a little over 2 years prior to the trial.

7. Mr and Mrs Waldron had first met the appellant while she was a student.  She had come down to Perth from Singapore to complete her secondary schooling.  She then stayed in Perth, qualifying as a nurse.  She later became a real estate agent.  Mr and Mrs Waldron had been members of the Australian Asian Association, whose members provided support for students coming to Perth from Asia for their further education.  It was through this Association that they met the appellant in 1967, when she was aged 19.  They developed a relationship with the appellant, although the closeness of that relationship was a matter of some dispute during the trial.  It is reasonable to conclude that the relationship initially was significantly closer than Mrs Waldron's evidence suggested; but it was not nearly as close as the appellant claimed it to have been. 

8. Mrs Waldron's evidence was that in 1989, at or about Christmas, the appellant had come to her in a very distressed state and told her that she needed some money in order to save her real estate agency business.  She said she wanted $15,000, and asked whether Mr and Mrs Waldron could possibly lend it to her.  Mrs Waldron responded that it was a lot of money and enquired whether the appellant could not borrow the money from other friends.  The respondent replied that she could not borrow from anyone else, and that her business was suffering, and would go under if she could not raise the sum of $15,000.  She needed the money immediately.  Mrs Waldron explained to her that they had only $5,000 in the bank, although they did have some term deposits.  In the end, having discussed the matter with her husband, a loan of $5,000 was made by Mrs Waldron to the appellant.  According to Mrs Waldron, the appellant insisted that the loan would be repaid within five or six weeks.  An additional amount of $10,000 was subsequently lent to the appellant.  It took a year for her to repay the initial loan of $5,000.  By the time of the trial, the second loan had still not been repaid.  The appellant claimed that this loan had been forgiven, or at least left with her for the purpose of her going on to buy real estate "and different things" for Mr and Mrs Waldron, claims which Mrs Waldron vigorously denied.  The appellant also maintained that Mr Waldron wanted her to be very successful and to set up her real estate office.

9. In 1970, the Waldrons had purchased a house in Dean Road, Bateman, as their home.  Then, in or about 1984, from moneys received from her father's estate, Mrs Waldron bought a block of land at South Yunderup, on which she had a holiday home built.  The land was registered in her name alone.  The appellant apparently assisted Mrs Waldron with respect to the acquisition of the land, and with the subsequent engagement of a builder.

10. In the early 1980s, Mr and Mrs Waldron decided to give their home in Bateman to the Moral Re-Armament movement, subject to their retaining a life tenancy with respect to the ground floor.  With the passage of time, they decided to move from their home in Bateman into a unit in a retirement village which was then being constructed by the Fini Group at Bibra Lake.  They chose a unit, and on 28 March 1991 they executed what was described as a Residency Deed in relation to that unit.  On 16 April 1991, they paid a deposit of $5,000 towards the purchase of the unit in order to have it held for them.  The purchase price for the unit was $134,000.  It was anticipated at that time that the unit would be ready for occupation on 31 October 1991.

11. Mrs Waldron, in order to finance the acquisition of the unit, decided to sell her property at South Yunderup.  The appellant offered to act as agent for Mrs Waldron for the sale of this property, suggesting that Mrs Waldron and her husband were getting on a bit in years and would not understand much about the real estate business.  She said she would take all the stress, strain and worry out of the sale.  The appellant then undertook the sale of the property.  The appellant also, it would seem, assisted Mr and Mrs Waldron in relation to their settling the price for their surrendering their life interest in the ground floor of the Bateman property.  Their decision to surrender this interest appears also to have resulted from their decision to purchase the unit at Bibra Lake.

12. The South Yunderup property was apparently sold to Mr P D Shearing for the sum of $72,000 on 6 June 1991, although, as will appear, it was by no means a straightforward sale, because Mr Shearing and the appellant, on the same day, executed a deed in which Mr Shearing acknowledged that he was holding one undivided half share in the property upon trust for the appellant.  He also acknowledged that the appellant had paid $43,067 as her contribution towards the purchase of the land.  Both parties acknowledged that the sum of $18,000 had been paid to the vendor of the land, an acknowledgement which was patently false.  Mrs Waldron expressed her disappointment at the price obtained for her property.  The appellant told her that this was all she could get, as the property did not have any other buyers.  Mr Shearing was known to the appellant prior to this transaction.  There is no indication that Mr & Mrs Waldron were ever advised as to the appellant's having acquired from Mr Shearing a one‑half interest in the property.  Mr Shearing later sold the property for $86,000.

13. It is to be noted that the purchase price for the property, according to the form of offer and acceptance, was $90,000.  The explanation for this discrepancy would seem to have been that, by purporting to purchase the property for the larger sum, Mr Shearing would be enabled to borrow from his bank more than he would have been able to borrow had the bank known that the purchase price was only $72,000.  Mrs Waldron understood that the true purchase price was the lesser sum, and she and her husband signed the offer and acceptance on that basis.  The settlement statement prepared by the appellant's solicitor, however, continued to show the purchase price to be $90,000.  The statement showed the sum of $18,000 as a deposit, and indicated that the amount due at settlement was the sum of $71,921.89.

14. Settlement took place on 5 August 1991, and on that day a bank cheque was drawn on the National Australia Bank for the sum of $72,000, payable to Mrs Waldron.  According to Mrs Waldron, the appellant suggested to her that the money should be placed in the appellant's trust account, so that when settlement of the Bibra Lake unit took place, which was still expected to be on 31 October 1991, "the money would be together".  Mrs Waldron agreed with this suggestion, and she signed her name on the back of the cheque under the place where the appellant had written:  "Pay to Frances Chan".  However, the cheque was not paid into the appellant's trust account.  It was paid into her personal account at the National Australia Savings Bank.  On 6 August 1991, the appellant drew three cheques on that account, being a cheque for $20,000 payable to "Frances Chan Real Estate" (which was not a trust account), a cheque for $10,000 payable to Village Bistro, a restaurant in which it appears the appellant had a financial interest, and a cheque for $20,000 payable to "Commonwealth Bank a/c F M Chan" (which was not a trust account).  At the time the cheque for $72,000 was paid into the appellant's account, that account was overdrawn by an amount slightly in excess of $7,500.  On the following day, 7 August 1991, the appellant drew another cheque on her personal account in favour of herself for the sum of $4,500.

15. According to Mrs Waldron, she and her husband were depending upon the sum of $49,500 paid to them by the Moral Re-Armament movement on the surrender of their life interest in the Bateman property and upon the sum of $72,000, being the proceeds of sale of her South Yunderup property, in order to pay the purchase price for their Bibra Lake unit.

16. On 16 October 1991, Mrs Waldron paid to the appellant the sum of $22,000 by a bank cheque drawn in favour of "Frances Chan".  The cheque was credited to "Frances Chan Real Estate".  This account was in debit to the extent of $20,616.21 prior to the bank cheque being deposited.  This money, according to Mrs Waldron, had accumulated in her account, and was intended by her to be paid into the appellant's trust account to be put towards the purchase price of the Bibra Lake unit, as the settlement date was rapidly approaching.  Settlement did not take place on the scheduled date.

17. On 1 November 1991, Mr Waldron obtained a bank cheque for $32,150, payable to Frances Chan.  This amount formed part of the proceeds from the sale of the Waldrons' interest in their Bateman property.  The bank cheque was given to the appellant and later credited to her business account.  The purpose of this payment was, once again, so that it could be held until the money was required to be put towards the purchase price of the unit.  Before the cheque was paid into her account, the appellant's account was in debit to the extent of $26,945.96.  Withdrawals on the same day put the account into overdraft once more.

18. On 18 December 1991, the appellant had the Waldrons sign a letter directed to Fini Homes, the builders of the retirement village, authorising the appellant to handle, on their behalf, all matters in relation to the unit, and to supply any documentation as might be necessary.  This authority, the appellant told Mr and Mrs Waldron, was necessary to enable her to deal with Fini Homes directly.

19. A deed, which is undated except for the year 1991, was executed by the appellant as "the Borrower" and Mr and Mrs Waldron as "the Lender" [sic].  The deed acknowledges that the appellant was indebted to Mr and Mrs Waldron in the sum of $134,000.  The deed then goes on to acknowledge that the property, being the unit at Bibra Lake, although registered in her name, was the lawful property of Mr and Mrs Waldron and that she would hold it upon trust for them until her "debt is extinguished by the effluxion of time or discharged by mutual agreement".  There is a further provision to the effect that the agreement was required to be reviewed annually.  Upon the debt being discharged, the appellant was required, at their request, to transfer the property to Mr and Mrs Waldron.  The clear inference is that the appellant was experiencing significant financial problems of her own throughout this period.

20. Mrs Waldron strongly denied that she and her husband had ever made a gift to the appellant of the money which the appellant claimed had been given to her.  Her evidence was that the appellant had requested her and her husband to sign the deed, and she claimed that the appellant had made quite light of it, saying that it was just a matter of her getting their signatures on the deed so that she could go ahead with the negotiations with the owners of the unit.  What those negotiations were, was never made clear.  The deed was prepared by the appellant's own solicitor, Mr Chan.

21. There appears at the top of the deed the handwritten word, "Cancelled".  This is not surprising in view of the fact that the appellant, not being 55 years of age or over, was not eligible to be registered as the owner of a unit in the retirement village.  By another document, however, which is dated 25 November 1991, the position of the parties was reversed.  It was now declared by Mr and Mrs Waldron that they were registered, or entitled to be registered, as the proprietors of an estate in fee simple in the Bibra Lake unit.  The fact was that they were not at that time either registered or entitled to be registered as the owner of the unit, because settlement had not taken place, and only the sum of $5,000 had been paid to the vendor.  Nevertheless, they purported to acknowledge that they held the unit upon trust for the appellant "in fee simple absolutely".  The declaration of trust was prepared by Mr Chan and the Waldrons' signatures were witnessed by the appellant's secretary, Ms S W Robins.

22. On 26 November 1991, Mr Chan wrote to the appellant, indicating that Perpetual Trustees were "quite adamant that they are not prepared to accept the basis of a trusteeship".  He went on to say:

    "To that end, as per our previous discussions, you would now proceed to have the Waldrons purchase the property in their names, whereupon they would then allow the interest to be mortgaged to the National Australia Bank."

1. A number of dates for settlement were fixed by Bibra Lake Development Pty Ltd, the vendor; but they were not met.  The appellant had, on Mrs Waldron's evidence, spent the moneys set aside by the Waldrons for the purchase price of the unit, and there was no alternative source of funding immediately available to them.  Nevertheless, on 30 December 1991, Mr Chan wrote to the Sales and Marketing Director of Lakeside Village, Bibra Lake, advising him that the purchase of the unit by Mr and Mrs Waldron was then unconditional and that settlement would take effect on 31 January 1992.  He stated that moneys were in place for settlement.  They were not, and settlement did not take place on the date he had nominated.  As a result, interest was incurred by Mr and Mrs Waldron.  In the meantime, Mr and Mrs Waldron had been permitted to occupy the unit at Bibra Lake, they having by that time moved out of their former home in Bateman.  They were required to pay rental of $120 per week for their occupation of the unit.

2. Subsequently, Friday, 13 March 1992 was fixed for the settlement of the unit.  A settlement statement was forwarded to Mr and Mrs Waldron.  It included a claim for interest amounting to $2,660.70 and solicitors' costs in connection with the service upon the Waldrons of a notice of default amounting to $636.  Settlement did not take place on 13 March.  However, subject to the delivery to the vendor of a bank cheque in the sum of $50,000 on the afternoon of 13 March 1992, the period of the notice of default was extended by the vendor for seven days.  According to the appellant, she could not then settle the purchase, because her money had gone into her own business, and she still had to find an alternative source of funding.  The sum of $50,000 was raised by Mrs Chan.  Of that amount, $23,049.64 apparently came from Mrs Gaglio's share of the proceeds of sale of the Gaglios' home, to which reference is made later.

3. Arrangements were then made through Mr T V Sukumar, a solicitor who was employed by Mr Chan, to provide the balance of the purchase price for the unit and the other amounts for which the Waldrons had become liable.  The total of the proposed loan was $82,348.81.  It was to be repaid within 30 days, together with a further sum of $5,000 by way of interest.  If the principal sum was not repaid within that period, interest at a daily rate of $164.38 was to be paid.  On this basis, Mr Sukumar agreed to advance these moneys through his family trust.

4. A most unusual deed, dated 20 March 1992, was entered into in relation to the loan.  It was made between Ms S W Robins, the appellant's secretary, who was described as the Borrower, Mrs G V Sukumar, the trustee for the Sukumar Family Trust, who was described as the Lender, Mr and Mrs Waldron, who were described as the Mortgagor and the appellant, who was described as the Guarantor.  The deed was prepared by Mr Chan, who witnessed the signatures of each of the parties to it.  The deed provided that, in consideration of the Lender's advancing the principal sum to her, Ms Robins agreed, with the Mortgagors' consent, to assign the mortgage over the unit at Bibra Lake to the Lender as security for the moneys advanced.  The appellant also agreed to indemnify Mr and Mrs Waldron with respect to the repayment of the principal and interest pursuant to the mortgage.  The mortgage had been granted by Mr and Mrs Waldron to Ms Robins.

5. Settlement ultimately took place on 23 March 1992.  On the same day, Mr and Mrs Waldron signed a handwritten authority, in which they purported to give their consent to the appellant's using the unit as "collateral" to the extent of the value of the property, provided that the appellant at all times indemnified them against any repayment of the principal, interest and other costs associated with any collateral given and, further, that such consent be for a period of 12 months from the date of the document, 23 March 1992.  The auithority was renewable, at their discretion, at the expiration of the 12‑month period.  The document was signed by Mr and Mrs Waldron and witnessed by Mr Chan.  It was not signed by the appellant.  Mrs Waldron said that she did not understand this document.

6. The evidence of the appellant was to the effect that the sum of $72,000, being the proceeds of sale of the South Yunderup property, was given to her because the Waldrons wanted her to have those proceeds by reason of their close relationship with her over the years.  She said that the Waldrons wanted her to care for them for the rest of their lives, and that the cheque for $72,000 was given to her for this purpose.  She also said that Mr and Mrs Waldron wanted her to have the money so that she could be successful in her real estate business and so that she could acquire the unit at Bibra Lake, giving Mr and Mrs Waldron a life tenancy in the unit.  Another version put forward by the appellant was that Mr Waldron wanted the moneys to come to her in order that she might set up a portfolio of different properties for investment purposes, taking advantage of negative gearing.  She claimed that Mr Waldron had become very, very ill and that he was "slightly" starting to get older and was losing his memory a little "and different things".  In fact, Mr Waldron had sustained a series of strokes. 

7. The appellant said that the payment of $22,000 which was made to her had been prearranged because Mr and Mrs Waldron wanted her to have the moneys and the interest and that it was really paid to her to look after them for the rest of their lives and to have a successful real estate business.  As to the third payment, amounting to $32,150, she said that Mr Waldron had told her that he was going to write out a cheque for her and that he gave it to her with a hug and a kiss.

8. Mrs Waldron strongly denied that the three payments were to be used for any purpose other than for meeting the outstanding purchase price for the unit at Bibra Lake, the purchase being in the names of herself and her husband.  The jury, by its verdict, clearly rejected the evidence of the appellant and accepted that of Mrs Waldron.

9. The fourth count in the indictment alleged that, on or about 13 March 1992, at Perth, the appellant and Seng Fai Chan, with intent to defraud, by deceit or fraudulent means, obtained property, namely, money in the sum of $560,0000, from R & I Trustees Ltd.  In relation to this count, the Crown prosecutor provided particulars of what were claimed to have been four false representations made to the company by the appellant.  They were as follows:

   (1)that the appellant was the sole owner of 13 Gibson Street, Mount Pleasant;

   (2)that Mr and Mrs P Corena held the property at 69 Grenadier Drive, Thornlie, on trust for the appellant and that they had no interest in the land other than as trustee for the appellant;

   (3)that Mr and Mrs P Corena held the property at 11B Jecks Street, Rockingham, on trust for the appellant and that they had no interest in the land other than as trustee for the appellant; and

   (4)that Mrs S M Tailor held the property at Lot 110 Wattle Bird Way, Greenfields, Mandurah, on trust for the appellant and that she had no interest in the land other than as trustee for the appellant.

10. In 1991, Ms M J Thomas, who was a qualified accountant and a licensed finance broker, was requested by the appellant to prepare a detailed application for finance.  The appellant provided all the basic information for this purpose, and the application contained a disclaimer, indicating that the information accompanying the application was based upon data and other inputs provided by the appellant and/or her professional consultants and advisers.  The application was submitted by Ms Thomas to Mr John Wankey, who has since changed his surname to Harris, and it is convenient to refer to him by that name.  Mr Harris was a director of International Financing and Investment Pty Ltd.  It was his task to seek out possible lenders.  An amount of $850,000 was being sought by the appellant.  Mr Harris prepared a fresh application for finance, based essentially on the earlier application prepared by Ms Thomas.  He sent a copy to R & I Trustees Ltd.

11. The security initially offered by the appellant comprised first registered mortgages over the following properties:

    (1)57 Kingsmill Gardens, Winthrop (value $272,000);

    (2)13 Gibson Street, Mount Pleasant (value $189,500);

    (3)29 Grenadier Drive, Thornlie (value $176,000);

    (4)10 Gunn Court, Thornlie (value $163,000);

    (5)6 Davison Street, Maddington (value $200,000);

    (6)Unit 23, 2 Fantail Drive, Bibra Lake (purchase price $134,000);

    (7)11B Jecks Street, Rockingham (value $100,000); and

    (8)Lot 110 Wattle Bird Way, Greenfields, Mandurah.

12. Only the properties at 57 Kingsmill Gardens, Winthrop, and 13 Gibson Street, Mount Pleasant, were registered in the name of the appellant.  The properties at 29 Grenadier Drive, Thornlie, and at 11B Jecks Street, Rockingham, were registered in the names of Mr Pietro Corena and Mrs Glenis Corena.  The property at 10 Gunn Court, Thornlie, and the property at 6 Davison Street, Maddington, were registered in the names of Mr C A Gaglio and Mrs R A Gaglio.  At this time, only $5,000 had been paid towards the purchase price of the unit at Bibra Lake, and it was not yet registered in the name of Mr and Mrs Waldron.  It was registered in the name of Bibra Lake Development Pty Ltd.  The property at Lot 110 Wattle Bird Way was registered in the name of Mrs S M Tailor.

13. The first of the alleged representations related to Mr P D Shearing.  By an agreement dated 10 June 1991, entered into by the appellant and Mr Shearing, it was recited that the appellant was the registered proprietor of the property known as 13 Gibson Street, Mount Pleasant.  Under the terms of the agreement, the appellant agreed to sell, and Mr Shearing agreed to purchase, a one‑half interest in that property, free of all encumbrances, for the sum of $87,500, payable as to $55,000 upon execution of the agreement, and as to the balance of $32,500 "by Vendor finance and subject to the Vendor's terms and conditions to be mutually agreed upon".  Significantly, for the present purposes, it was further agreed that the appellant should continue to be the registered proprietor of the property, but that she should hold a one undivided half share in that property upon trust for Mr Shearing.  This contract was clearly linked with the agreement made four days earlier, on 6 June 1991 by which Mrs Waldron had agreed to sell her property at South Yunderup to Mr Shearing.  Mr Shearing said that, at this time, the intention was that he and the appellant would develop the property.  The money which he paid for his interest in the property at 13 Gibson Street, Mount Pleasant, was intended to be used to discharge the appellant's mortgages over the property; but this was not given effect to by the appellant.  In or about December 1992, Mr Shearing went to Melbourne for a period of three months.  When he returned, he discovered that, without his knowledge, the property had been sold.  The appellant contended that the agreement had been terminated by common consent.  This was firmly denied by Mr Shearing.

14. The second and third of the alleged representations related to two properties registered in the names of Mr P Corena and his wife, Mrs G Corena, being the house in which they were living at 69 Grenadier Drive, Thornlie, and a property at 11B Jecks Street, Rockingham.  The titles to both properties were unencumbered. 

15. The evidence of Mr Corena was that, towards the end of 1991, while he and his wife were visiting the home of their son‑in‑law, Mr C A Gaglio and their daughter, Mrs R A Gaglio, the appellant had spoken to them about Mr and Mrs Gaglio's business, known as Vista Furniture, which was being conducted from the furniture factory premises at 6 Davison Street, Maddington.  The business was said to be in serious financial difficulties and urgent assistance was needed to raise money in order to save it.  Mr Gaglio had approached the appellant for help in raising the necessary finance to rescue the business.  The appellant indicated that she herself was prepared to help the Gaglios by selling her property in Gibson Street, Mount Pleasant, and by contributing some of the proceeds from the sale.  At first, Mr Corena was reluctant to assist.  Mrs Corena did not say anything while the discussion was taking place.  No decision was reached regarding any contribution from the Corenas.

16. Following this meeting, the appellant regularly called on Mr and Mrs Corena at their home, seeking to have them participate in the proposed rescue operation.  This envisaged the appellant's purchasing the business of Vista Furniture and employing Mr Gaglio as its manager.  It also involved her purchasing the factory premises and, in addition, purchasing Mr Gaglio's undivided half interest in the family home.  So far as the purchase of the interest in the family home was concerned, the appellant had told Mr and Mrs Gaglio that they could live in it free of rent, and buy back the business and their home within three years.  That was never to eventuate.  She maintained that she would not make any profit from the rescue.  She informed Mr Corena that she wanted to have the certificate of title to the Corenas' family home at 69 Grenadier Drive, Thornlie, so that she could show it to the bank in order that it would lend money on the property.  She did not indicate how much funding she wished to obtain, but said that, when she "borrowed" the title to the house, it would be put in writing that she had done so.  The appellant told Mr Corena that she would only need to have their title for about five to six months, because she had money coming to her from Singapore in the near future.  The actual source, and the amount of this money, were never identified.  The appellant told Mr Corena that Mr Chan was going to do the legal work for them, and that "he would not do anything bad" for Mr Corena.  Mr Chan was her solicitor.

17. Early in 1992, at the request of the appellant, Mr Corena met with Mr Chan.  Mrs Corena was not present.  Mr Corena then indicated that he was prepared to join in the "rescue", and he later obtained the certificate of title for 69 Grenadier Drive, Thornlie, from his bank and gave it to the appellant.  There was in evidence a declaration of trust dated 8 June 1991, signed by Mr and Mrs Corena, which stated that they held the property at 69 Grenadier Drive, Thornlie, upon trust for the appellant in fee simple absolutely.  The document had been drawn by the appellant's solicitor.  There appears to have been some doubt as to the date of this document.  Ms Robins apparently signed as a witness to the signatures of Mr and Mrs Corena, but she claimed that she had been in New Zealand on 8 June 1991.

18. A month, or perhaps a couple of months later, the appellant called at Mr Corena's house and told him that she had not been able to raise sufficient money to save the family business, and that she would require the property of Mr and Mrs Corena at 11B Jecks Street, Rockingham, as well.  At first, Mr Corena rejected this suggestion, but with some hesitation, he subsequently agreed, and the title to that property was also delivered to the appellant. 

19. Mr Corena's evidence was that, at the request of the appellant, he and his wife had gone to Mr Chan's office to sign a form.  Mr Chan denied knowing anything about the form.  The appellant came into Mr Chan's office and, after Mr Corena had complained to her about her wasting his time, she had apologised, and told him to put his signature on a blank piece of paper, saying that Mr Chan could fill in the rest afterwards.  Mr Corena and his wife, according to Mr Corena, signed the blank piece of paper. 

20. A document was tendered in evidence, purporting to have been signed by Mr and Mrs Corena as vendors and by the appellant both as a witness and as the "purchaser".  The document had been written by the appellant.  It bears the date, 6 January 1992, and reads as follows:

    "To Whom it May Concern

    Re:-  11B Jecks St, Rockingham

    Please be advised that we have sold the above property to Frances Chan of 59, Kingsmill Gardens, Winthrop and are currently holding it in trust for her."

21. Mr Corena denied ever having sold any property to the appellant or having given her any property.  Mr Chan denied in his evidence that he knew anything about this document.  The document was patently a sham.

22. The fourth of the alleged representations related to Mrs S M Tailor.  The evidence was that Mrs Tailor had known the appellant for some years.  The appellant said they had first met in 1986.  In 1991 or 1992, Mrs Tailor had bought a house in Wattle Bird Way, Greenfields, Mandurah.  The appellant asked Mrs Tailor on several occasions whether there were any encumbrances on her property, and when Mrs Tailor indicated that there were no encumbrances on it, the appellant expressed the wish to "have a loan" of the certificate of title.  Although there was no advantage in Mrs Tailor's permitting the use of her certificate of title to allow the appellant to raise money for the ostensible purpose of helping out other people with whom she was not acquainted, she agreed to the appellant's having the certificate of title, as long as she could either have another house or have the certificate of title returned to her if she needed it.  She did not consider that she was doing anything wrong in agreeing to the appellant's proposal.  Nor did she believe that the appellant was doing anything wrong.  The appellant offered Mrs Tailor $25 a week for "lending" her the certificate of title.  She made a number of payments, but then, Mrs Tailor said, the appellant just kept forgetting all the time.  According to Mrs Tailor, the appellant said she needed money to help pay off a loan from the R and I Bank.  Mrs Tailor gave her the certificate of title.  This arrangement was not reduced to writing because, Mrs Tailor said, they had been friends and she trusted the appellant at that time.

23. On 17 November 1991, Mr F S Kamp, who was, at the material time, the Manager, Administration, of R & I Trustees Ltd, with responsibility to the company for its mortgage lending division, received from Mr John Harris the application submitted on behalf of the appellant who was seeking a loan of $850,000 from the company.  The purpose of the loan was said to be to acquire additional properties, and to refinance existing borrowings from the National Australia Bank.  There was no mention of any rescue operation affecting Mr and Mrs Gaglio or involving the taking over of a furniture business.  Of the properties eventually offered as security for the loan, it was discovered that those owned by Mr and Mrs Corena and Mrs Tailor were not registered in the name of the appellant.  Furthermore, the unit at Bibra Lake remained registered in the name of Bibra Lake Development Pty Ltd.  In response to queries on this subject made by Mr Kamp, Mr Harris advised him, by a memorandum dated 15 January 1992:

    "Mrs Chan's 'acquisition' of properties over the past three years was in part what she retained from the divorce, together with others that have been acquired.  You will note below that a few of these securities are held in trust by others.

    This has been a precautionary measure advised to her by both her accountant and her solicitor.  It is her intention though that in the short term all properties will be transferred back to Mrs Chan."

    This explanation appeared to Mr Kamp to be "reasonably plausible", and he accepted that the appellant had reasons for the properties being registered in the names of other persons.  In hindsight, the explanation was clearly false.  The memorandum also attributed rental to the homes occupied by the Waldrons, the Corenas, the Gaglios and Mrs Tailor.  There were no such rentals being received by the appellant.  The position was not, as the memorandum claimed, that all the properties proposed to be mortgaged were currently let at reasonable market rates.

    The application proceeded, according to Mr Kamp, on the basis that R & I Trustees Ltd, through its directors, would simply establish "formally and legally" that the application was in order, on the assumption that the company would be able to verify the position before final approval was given to the application.  Mr Kamp then settled the terms of a memorandum to the Board of R & I Trustees Ltd, recommending that it should approve the loan.  With this in view, the memorandum to the Board contained a number of recommended special conditions to be incorporated into the terms of the proposed loan agreement, one of which was that there should be evidence of the trusts to the satisfaction of the company's solicitors, in anticipation that there must have been deeds of trust or other formal documents confirming what Mr Kamp had been told.  Such documents as there were, were inadequate.  Nevertheless, the application was approved, as submitted, at a meeting of the Board held on 22 January 1992.  This meeting was attended by Mr Kamp.

1. Although approval for a loan of $850,000 was given by the Board of R & I Trustees Ltd on 22 January 1992, it was given, as I have indicated, subject to a number of special conditions.  There was no suggestion, however, that the application for the loan was either required to go back to the Board, or that it did go back to the Board, for its final approval.

2. Difficulties were experienced in obtaining copies of the "trust" documents.  Mr Kamp was in contact with the appellant directly and met her on some eight to 10 occasions in the course of his consideration of her application, as well as having a number of telephone conversations with her.  The appellant left two photocopies of trust documents with Mr Kamp; but Mr Kamp took the view that he had to leave the verification of the trust arrangements in the hands of the company's solicitors, Messrs Phillips Fox, to be dealt with prior to settlement.

3. The solicitor in the firm of Phillips Fox advising R & I Trustees Ltd in this matter, Mr P C Beekink, was clearly not satisfied with the documentation which had been shown to him with respect to the alleged trusts.  He therefore prepared, and sent to Mr Harris for execution by each of the relevant parties, being Mr Corena, Mrs Corena and Mrs Tailor, a statutory declaration stating that each was the registered proprietor of the land in question and that, inter alia, each held the land on trust for the appellant and had no interest in it other than as a trustee for her and, further, that he or she was not in any way disqualified from acting as a trustee for the appellant.  It was then asserted that the declarant had full power and authority, for the benefit, purposes and objects of the trust in favour of the appellant, to raise money upon the security of the mortgage or mortgages referred to in the declaration, and to execute the same in order to secure the repayment of those moneys.  The money so advanced was to be applied for the benefit of the appellant, and not otherwise.  No mention was made of the Gaglios.  Finally, it was recorded that the appellant had consented to the declarants' each granting a first registered mortgage over the relevant land in favour of R & I Trustees Ltd.

4. The mortgages required to be executed by Mr and Mrs Corena, and by Mrs Tailor, were accompanied by a notice to each of them, and by another statutory declaration to be completed by them.  The notice was in the following terms:

   "WARNING

   Please read this notice and the Statutory Declaration below before you sign any documents.

   You are a Mortgagor and a Covenantor under the documentation, or some of the documentation referred to in the Schedule below.

   Pursuant to this documentation you promise that Frances Mary Chan ("the Borrower") who is obtaining a loan or finance from "the Lender" will perform all the obligations and observe all the terms and conditions therein.  If the Borrower does not do so you promise to pay the Lender all moneys owing under the documentation as soon as the money is asked for subject to any other terms and conditions contained in the documentation.  In the event of default under the documentation any documents you have signed in favour of Lender may be enforced.  Neither the meaning nor the effect of the documentation shall be affected in any way by this Notice.  To the extent of any inconsistency between this Notice and the documentation, the documentation shall prevail.

   You should seek independent legal advice as to the meaning and effect of the documents you are executing or any related or collateral documents and your liability thereunder."

5. The schedule to the Notice identified each of the mortgages to be granted in favour of R & I Trustees Ltd.

6. The statutory declaration by each of the so‑called trustees acknowledged their having read the Notice to Mortgagor, having fully accepted and understood it, and having read the documentation and any collateral documents and that they were aware of, and understood, their obligations and liabilities thereunder.  They also acknowledged that they had been advised to seek independent legal advice as to the meaning and effect of the documentation, and that they had sought all independent advice that they required, and had freely, and on their own volition, executed the documentation and the statutory declaration.  None of them, however, took the precaution of seeking independent legal advice.  Furthermore, no signature to the Notice to Mortgagor was to be found in relation to Mrs Tailor.

7. There then followed a solicitor's certificate, certifying that, in the case of Mrs Tailor, and in the case of Mr and Mrs Corena, the solicitor had explained to each of them the full force and effect of the statutory declaration, and that they had indicated to the solicitor that they fully understood the nature of the documentation and transactions referred to in the schedule and the extent of their liability thereunder.  In each case, the solicitor who ultimately signed the certificate was Mr Chan, the appellant's own solicitor.  He signed the statutory declaration and the certificate for Mrs Tailor without seeing her and having merely spoken to her on the telephone.

8. Mr Chan appears to have been oblivious to the conflict of interests in which he was involved.  His position was, in fact, intolerable.  Acting for the appellant, he was in no position to provide independent advice to those with whom the appellant was negotiating.  Had he adequately explained the position to the Waldrons, the Corenas and Mrs Tailor, it could hardly have been thought that they would willingly have participated in the proposals advanced by the appellant.  Moreover, the document which Mr Chan presented to them for signature presented a number of problems which clearly called for independent advice.

9. Late in February 1992, at the time when the appellant was completing the documentation which was required as a precondition of the loan, the appellant telephoned Mr Corena, requesting that he and Mrs Corena should go out to Cannington to meet the appellant and to sign a paper.  They drove to Cannington, where they met the appellant.  However, Mr Corena refused to sign any paper because he had not received the acknowledgment from the appellant, which she had promised, of his having given the title to her.  Mr and Mrs Corena, at the appellant's request, subsequently called at Mr Chan's office, where it was agreed that Mr Chan would give Mr Corena a document to sign on the following day.

10. They returned to Mr Chan's office on the following day, when he produced a document to them.  It was described as an acknowledgment of debt.  It was dated 25 February 1992, and it was signed by Mr and Mrs Corena, who were described in the document as "the Lender", and by the appellant, who was described as "the Borrower".  It was provided by this agreement that Mr and Mrs Corena would allow the appellant to "secure the properties" at 69 Grenadier Drive, Thornlie, and 11B Jecks Street, Rockingham, in order that the appellant might be able to "obtain funds for her own purpose" for a period of 15 months, commencing on 25 February 1992.  In consideration of Mr and Mrs Corenas' allowing the appellant to "use" the security, the appellant agreed that, in the event of the security not being returned unencumbered, she would be deemed to have been indebted to Mr and Mrs Corena in the sum of $240,000, which would be "repayable" on 25 May 1992.  Mr Corena said that he had put heavy pressure on to the appellant before she signed the agreement.  He said she was "dead against it".  This was denied by Mr Chan and by the appellant.

11. Before signing the document, Mr Corena had asked what the figure of $240,000 was for.  Mr Chan, according to Mr Corena, told him that it did not mean anything, because once the appellant had repaid the money to the bank, they would get their title back.  In his evidence, Mr Beekink said that the acknowledgement of debt established, so far as he was concerned, that the properties were not held on trust for the appellant.  He did not sight the acknowledgement of debt, however, until long after the loan had been drawn down.

12. On Mr Corena's evidence, the appellant told him to hurry up and sign the documents presented to him because, otherwise, everything was going to fall apart.  "Just sign here, sign there, sign, sign", Mr Corena claimed she had said.  He claimed that nobody explained to him what the documents were all about, and he said that, "We never read them; not one line."  He went on to say that he did not have a chance to read the documents and that no‑one told him to have anyone advise him on them.  He denied knowingly having signed documents recording that he held his properties in trust for the appellant.  He denied that anyone had ever suggested that he and his wife had lent themselves to a plan whereby they let the appellant use their two titles to secure the loan from R & I Trustees Ltd.  He was admittedly seeking to help his own family, and not the appellant.  Mr Corena said he had never been a guarantor previously, but he believed he was a guarantor on this occasion.  He did not understand the terminology being used in the documentation.  His difficulties must have been compounded by the complex, and sometimes poorly drafted, documents presented for his signature.  Although he denied having been given any opportunity to read the documents before signing them, this is somewhat inconsistent with Mr Corena's having queried the figure of $240,000.  Nevertheless, he and Mrs Corena signed some of the documents, and the appellant then took other documents to a bowling club in South Perth where a Justice of the Peace witnessed their signatures to the other documents.  The Justice of the Peace was in a hurry, Mr Corena said, and they had no time to read the documents, although this was disputed by the appellant.  Amongst these documents were the statutory declarations prepared by the solicitors for R & I Trustees Ltd in relation to Mr and Mrs Corena's two properties in which it was stated, inter alia, that they held the land in trust for the appellant and had no interest in the land other than as trustees for the appellant.  Mr Corena maintained that he had only "lent" the titles to the appellant so that she could borrow money to enable the properties of Mr and Mrs Gaglio to be recovered by them. 

13. In the case of Mrs Tailor, the appellant asked her to come out to a property in Cannington to a house which was then open for inspection.  She met the appellant in the driveway of the property, where, Mrs Tailor claimed, she asked her to sign some papers quickly, because she had someone coming to see her.  She introduced Mrs Tailor to Mrs S L Porter, who was the agent for the sale of the property where she had joined the applicant.  She was told that the house was untidy and that they would have to sign the papers where they were.  Mrs Tailor said she was not told what the papers were.  They were all lined up, she said, and she did not have any opportunity to read them.  She claimed that she signed the papers on a post – the witness to her signature, Ms S L Porter, thought that she had signed them on the bonnet of a car.  One of the documents signed by her was a declaration of trust, dated 11 February 1992, prepared by the solicitors for R & I Trustees Ltd, declaring that she held her property at 110 Wattle Bird Way, Greenfields, Mandurah on trust for the appellant in fee simple "absolutely".  The declaration of trust was apparently later backdated to 11 February 1991.  She also signed a mortgage over her property in favour of R & I Trustees Ltd.  On the evidence adduced by the Crown, the appellant was extremely impatient to have Mr and Mrs Corena and Mrs Tailor execute the documents relating to the "trust" in her favour without their having the opportunity of reading those documents.

14. On 13 March 1992, the loan from R & I Trustees Ltd was drawn down.

15. The evidence of Mr Kamp was that, if he had seen the agreement dated 10 June 1991, made between the appellant and Mr Shearing, in connection with Mr Shearing's securing a half interest in the property at 13 Gibson Street, Mount Pleasant, before the loan had been drawn down, it would have affected his consideration of the loan.  This property, he said, was one of the key securities, being obviously prime residential real estate, and one of the anchor properties to the whole loan.  On the face of it, a half interest was being sold to someone who was not a party to the loan arrangements, and it would have affected the company in the sense that it was information that was incorrectly provided to it in the first place.  His main reaction would have been that what information the company had been given prior to this was not reliable, and that there would have been "a fair old speed wobble" in the company's approach to the loan.  The other issue was that it watered down the borrower's equity, and, he said, obviously that was another fundamental issue.

16. In relation to the Gibson Street property, Mr Kamp said, the recommendation had been made on the basis that it was solely owned by the appellant, it only having been ascertained subsequently that Mr Shearing had an interest in that property.  It would, he said, have been an erosion of the equity which they had assessed the appellant as having, and of her general ability to be able to be a borrower of half a million dollars.  It would have had a bearing on things "because the whole equation was based on what the appellant owned in life and [on] her commensurate ability to service borrowings of half a million dollars".

17. In the course of his cross‑examination, Mr Kamp reinforced his evidence that, if he had knowledge of the acknowledgment of debt given by the appellant to Mr and Mrs Corena, it would definitely have affected his recommendation to the Board in a very fundamental way, the loan having been granted on the basis that the appellant owned a parcel of residential securities in her own right, and having a certain value, whereas the documents indicated that she was using "borrowed titles" which, for a start, was a complete contradiction to the information they had relied upon when the company had advanced the loan.  The documents also indicated that the appellant was not the owner of the properties, and that she did not have any equity in them.  This was only appreciated by R & I Trustees Ltd after the loan had been made.

18. In the acknowledgment of debt dated 25 February 1992 given by the appellant to Mr and Mrs Corena, it was indicated that the appellant desired to borrow the sum of $240,000 from them for a period of 15 months commencing on 25 February 1992 and that Mr and Mrs Corena were not able to advance this sum, but that they had allowed the appellant to use their properties at 69 Grenadier Drive, Thornlie and 11B Jecks Street, Rockingham as security, whilst the appellant had agreed to release the security to Mr and Mrs Corena on the expiration of the period of 15 months.  Mr Kamp believed that the document had only come to light some years after the loan had been granted.  In answer to a question whether this would have affected the consideration by R & I Trustees Ltd of the loan, had it been aware that there was such a document, Mr Kamp replied, "I would have to say yes, because it cuts across the bare trustee principle".  This, he said, was a document "lending" the titles to the appellant so that she could raise money for a period of 15 months, whilst his company had agreed to a loan for a period of three years, on the assumption that the appellant was the beneficial owner of the properties.  He added, "So it's pretty fundamental stuff".

19. Mr Kamp noted that R & I Trustees Ltd had taken a mortgage over Mrs Tailor's property in Mandurah and that property eventually was sold.  It was, he said, one of the properties which Mrs Chan was selling under a structured process of pressuring her to sell, because she was in arrears with respect to the loan.  R & I Trustees Ltd received something like $73,000 from the proceeds of the sale of that property.  The appellant was allowed to keep some of the proceeds, because she was being pressured in other directions, and in order for her to keep afloat.  Mr Kamp explained that the company considered it had to accept the fact that she had to retain some of the proceeds.

20. Mr Kamp had been responsible for the reduction of the proposed loan from $850,000 to $560,000.  He indicated that this was basically a decision which he had made as the Manager of Administration, after he had obtained valuations of two of the properties then being offered as securities.  Those securities were not acceptable.  The properties concerned were Mr and Mrs Waldron's unit at Bibra Lake, and the factory premises in Maddington.  In the case of the unit at Bibra Lake, there were the considerable disadvantages associated with the restrictions applicable to retirement villages.  In the latter case, it was unacceptable because the premises were essentially owner occupied.

21. The fifth count concerned the application by the appellant of the sum of $23,049.64, which constituted one half of the net proceeds of the sale of the Gaglios' home at 10 Gunn Court, Thornlie.  Mrs Gaglio was a director of Camaron Pty Ltd in 1991 and 1992.  That company was the trustee of the family trust operating the business known as Vista Furniture.  As part of the so‑called rescue exercise, it was arranged that the appellant would purchase the business of Vista Furniture and the premises from which it operated, as well as purchasing Mr Gaglio's half interest in the family home at 10 Gunn Court, Thornlie.  Subsequently, the appellant approached Mrs Gaglio and her husband, saying that she did not have sufficient security to offer R & I Trustees Ltd, and that she would therefore need to acquire Mrs Gaglio's half interest in their home for that purpose.

22. Ultimately, it appears that the approach by the appellant had nothing to do with the security required by R & I Trustees Ltd.  The settlement statement in relation to the sales of the factory premises at 6 Davison Street, Maddington, and of the family home at 10 Gunn Court, Thornlie, which were made to the appellant, produced a net amount for distribution of $46,099.28, of which half was shown as being payable to Mrs Gaglio and half to the Australian Taxation Office, the latter being intended as part satisfaction of the substantial amount which Mr Gaglio owed to that office.  The sum of $46,099.28 was supposed to be the money left over after all payments had been made with respect to the settlement.  The settlement statement provided for commission of $10,125 for the appellant and solicitor's fees of $6,009 for Mr Chan.  The appellant asked Mrs Gaglio to assign her half share of the proceeds to the appellant, because, according to Mrs Gaglio, she needed the money as soon as possible to pay for bills in relation to the business.

23. The appellant wrote out an authority, which was dated 13 March 1992, in which Mrs Gaglio authorized and directed the appellant's solicitors, Paternoster & Chan to disburse the sum of $23,049.64 resulting from the sale of 10 Gunn Court and 6 Davison Street to Mrs Chan to cover all costs and disbursements incurred by her on Mrs Gaglio's behalf and that of her husband.  As with so many of the documents written by the appellant or prepared by her solicitor, there is a degree of ambiguity in the terms of this authority.  However, it is to be observed that the word used in the authority is "incurred" and not "paid".  Mrs Gaglio's evidence was that she had signed the authority to help the appellant pay for bills associated with the business which had to be paid.  She said she felt pressured into signing the authority and was made to feel guilty if she declined to help Mrs Chan out by signing it.  It is apparent that the appellant was financially embarrassed, notwithstanding that the loan from R & I Trustees Ltd was being drawn down on the same day, 13 March 1992.  Mrs Gaglio said she would not have agreed to the assignment had she known that the money was not in fact going to be used for the purpose of paying outstanding bills.  She did not agree to the proposition put to her that the appellant could have been seeking reimbursement of bills paid by her.  This appears to have occurred at a time when the business had been acquired by the appellant.  She repeated that what she had understood was that it was all to do with money that the appellant needed to pay for the debts of the business.  The money was not applied for this purpose.  Instead, it would appear that it was applied towards the payment of the sum of $50,000 which Bibra Lake Development Pty Ltd had demanded should be made by the afternoon of 13 March 1992.  The money paid to the appellant by Mr and Mrs Waldron in the previous year had already been expended by the appellant for her own purposes.

1. There were a number of statements of expenses which were claimed by the appellant to have been paid by her, but they were provided, it would seem, in October and December 1992, months after what was to have been Mrs Gaglio's share in the proceeds of sale had been applied towards the purchase price for the Waldrons' unit.  Mrs Gaglio said she had never been shown any statement of expenses by the appellant.

2. Initially, as already indicated, Mr and Mrs Gaglio were permitted to occupy their former home rent free, but after a period they were required to pay rent to the appellant.  Shortly after that, the appellant wanted them to get out of the house because she wished to sell it.  They then moved into a rented property.

3. The sixth count charges the appellant with having stolen the sum of $85,533.55 from Mrs Tailor.  That sum was the balance due to Mrs Tailor on the settlement of her Mandurah property.

4. In a letter to Mrs Tailor dated 1 May 1993, the appellant advised her that she was holding her property at Mandurah in trust for her and would indemnify "any moneys outstanding to you should the property incur debts through my finances".  In the event of her death, the appellant wrote, her estate would cover all the debts incurred by her.  Mrs Tailor claimed that when someone in the appellant's office showed the letter to her, she was in shock.

5. Mrs Tailor subsequently decided to put her property up for sale, and she asked the appellant to sell it on her behalf, because she wished to move back to Perth in order to be closer to where her mother lived.  Mrs Tailor signed a multiple listing service form, in which the appellant was named as the listing agent.  It was dated 9 May 1993.  The sale price was specified in the form as being $99,950.  The appellant told Mrs Tailor that she had a property in Radiata Street, Maddington, where she could reside rent free.  Mrs Tailor moved into that property before her own property had been sold.  For a while, Mrs Tailor said, the appellant did not seem to be interested in selling the property. 

6. On 29 September 1993, Mrs Tailor accepted an offer for the purchase of the property for the sum of $90,000.  The purchasers, Mr A D G Davies and Mrs S Davies, were well known to both the appellant and Mrs Tailor.  Mrs Tailor asked the appellant when she would be getting the proceeds from the sale of her house.  The reply was that the settlement had not yet gone through.  What Mrs Tailor did not know was that the property had been sold as part of a "structural sale" required of the appellant by R & I Trustees Ltd and that, as the settlement statement shows, $73,000 out of the sale price was being paid to that company.  A handwritten note, dated 17 November 1993, headed "To Whom it May Concern", was signed by Mrs Tailor, giving permission, on settlement of her home, for the moneys to be transferred to the appellant.  Her signature was witnessed by the appellant's secretary.  Mrs Tailor said she did not know how her signature had got on to that document.

7. On settlement, the appellant charged a commission of $3,575.  In a letter dated 6 September 1994, the appellant wrote to Mrs Tailor, advising her that moneys from the sale of the Mandurah property, less expenses, were being held with the appellant "as per our agreement".  That was a blatant lie.  The fact was that R & I Trustees Ltd had forced the sale and had retained approximately $73,000 out of the sale price.  The letter continued that, should Mrs Tailor require any funds from time to time, she should advise the appellant, who would do her best to draw money for her.  In the event of her death, she wrote, her estate would "recover funds back to you".

8. The appellant later told Mrs Tailor that she had put the proceeds into a trust fund.  Mrs Tailor said she was "very cross" and asked when she was going to get her money.  She was told that she could start looking for a new house, which she did, but nothing came of it.  She denied entering into any agreement in relation to the investment of the moneys from the sale.  Her intention had always been to buy another house closer to Perth with the proceeds of sale of her Mandurah property.  Mrs Tailor said that the appellant told her that she was going to buy some units in Rivervale and offered Mrs Tailor one of those units, but she went on to tell Mrs Tailor that it would have to be in the appellant's name.  Mrs Tailor did not pursue the matter.  It was conceded by the appellant that the sum of $60,000 remained owing by her to Mrs Tailor.  The true debt is likely to be significantly more than this sum.

9. The grounds of appeal against the appellant's convictions, as amended, are as follows:

   (1)The learned trial Judge erred in failing to give an adequate direction on the way in which the jury could use the evidence of good character adduced on behalf of the appellant.

   (2)The learned trial Judge erred in failing to direct the jury on the unexplained failure of the prosecution to call Mrs Glenis Corena as a prosecution witness and to direct the jury that she was a material witness which [sic] the prosecution might have been reasonably expected to call and thus the jury could infer that Mrs Corena would not have assisted the prosecution case.

   (3)The learned trial Judge erred in the direction he gave on the burden of proof and the effect of what he said left the jury in the position of looking at each count on the basis of whether the Crown case could be accepted or whether the case of the appellant could be accepted.  The direction was erroneous and the jury should simply have been told as follows:

   (a)It is for the prosecution to prove the guilt of the appellant;

   (b)The appellant does not have to prove her innocence;

   (c)Even if you found that the appellant was a liar, the verdict could not be guilty unless you were satisfied beyond reasonable doubt that the prosecution had proved its case; and

   (d)The appellant is entitled to the benefit of the doubt and if a doubt exists, howsoever arising, the duty of the jury is to acquit.

   (4)The learned trial Judge erred by directing the jury that if you believe the appellant, you acquit; if you disbelieve the appellant, you cannot convict unless satisfied beyond reasonable doubt upon all the evidence that she is guilty.  If the appellant's evidence leads you to the view that you are not sure whether you believe her or not, you should acquit.  It is the latter direction which suggests there is some onus on the appellant to satisfy the jury.

   (5)(a)      The learned trial Judge erred in failing to direct the jury that the evidence of Mr Kamp and Mr Beekink was insufficient to establish that R & I Trustees Ltd would not have, but for the false representations of the appellant, made the loan;

   (b)The learned trial Judge erred in failing to direct the jury that evidence from Board members was necessary to establish that the representations operated on the minds of the Board members and that if they had known the true position, they would not have made the loan.

   (6)(a)      The evidence from Roma Gaglio was insufficient to sustain a conviction on count 5.

   (b)The evidence of Roma Gaglio was not to the effect that had she known the true position, she would not have given her authority for the money to be disbursed to the appellant.

   (c)The learned trial Judge failed to direct the jury on the terms of s 22 of the Criminal Code.

   (7)The learned trial Judge erred in failing to direct the jury:

   (i)that it was for them to decide whether or not Mr Corena and Mrs Tailor were accomplices or not by reason of their having participated in the rescue plan and the loan application;

   (ii)if they found Mr Corena and Mrs Tailor to be accomplices, then it would be dangerous to convict on their evidence alone without corroboration;

   (iii)what corroborative evidence is, and to identify evidence capable of corroborating the witnesses Mr Corena and Mrs Tailor;

   (iv)that they could act upon the uncorroborated evidence of Mr Corena or Mrs Tailor, but only if after careful scrutiny and paying heed to the warning they were satisfied as to its truth and accuracy.

10. The first, third and fourth grounds of appeal related to each of the appellant's convictions.  The second and fifth grounds related to the appellant's conviction on count 4.  The sixth ground related to her conviction on count 5, while the seventh ground of appeal relates to her convictions on each of counts 4, 5 and 6.

11. In relation to the first ground of appeal, the appellant claims that the direction of the learned trial Judge with respect to the evidence of good character adduced by the appellant was inadequate.  What his Honour said was as follows:

    "Now, you will recall that the accused gave evidence that she had no prior convictions for any offences and you will recall also that witnesses had been called who gave what we call character evidence on behalf of the accused.

    Mr Tutungis was one such witness.  Mr Ronald Kevin Coles was a character witness.  He was a licensed security agent.  He has had business dealings with Mrs Chan for more than five years.  As to her character, he said that she was very professional, he had no problems with her accounts and as to her honesty, no problems.  She paid her accounts on time, and in cross‑examination he said that he had only known her from about 1995 onwards.  He didn't have any understanding as to what the charges are other than what he had read in the newspaper.

    Mr Tutungis, the management consultant, [said] he had known Mrs Chan for about 15 years, had done some real estate business with her about 10 years ago.  He found her to be very professional and honest and reliable and trustworthy.  He became aware last weekend that she was before the court and he said that what he understands about the charges doesn't seem to fit the character of the person whom he knew in business and Seng Fai Chan also gave some evidence as to his knowledge and business dealings with the accused person.  So they're what we call character evidence.

    What I want to say to you about that evidence is this:  you are entitled to bear in mind the accused's previous good character when considering whether you are prepared to draw from the evidence the conclusion of her guilt.  You should bear it in mind as a factor affecting the likelihood of the accused committing the offences charged, but having said that - and this is a qualification - I remind you, however, that people do commit offences for the first time and that evidence of previous good character cannot prevail against evidence of guilt which you may find to be convincing, notwithstanding the accused's previous good character."

12. The submission made on behalf of the appellant was that the good character direction "requires" that the jury be told:

    (i)to bear in mind the accused's good character when considering the question of the accused's guilt;

    (ii)to consider good character as a factor affecting the likelihood of the accused committing the crime charged;

    (iii)to consider the good character of the accused in assessing the credibility of the explanations offered by the accused;

    (iv)to consider the good character of the accused in assessing the credibility of the accused as a witness;

    (v)that people with previous good character can commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character;

    (vi)that whether or not a person is of good character is a question of fact for the jury.

13. The existence of these requirements in every case in which evidence of the good character of an accused person is adduced is not consistent with the majority decision of the High Court in Melbourne v The Queen (1999) 198 CLR 1.

14. Counsel for the appellant had raised at the conclusion of the learned trial Judge's directions to the jury an issue as to the adequacy of his Honour's directions with respect to the character evidence.  He said:

    "[I]t's customary I thought to say that the jury should also consider the good character of the accused in assessing the credibility of the explanations offered by the accused and, in a case where the accused gives evidence, the credibility of the accused as a witness.  Your Honour mentioned that they should consider the good character as a factor affecting the likelihood of the accused committing the crime alleged, but it's the other point, it's the asterisk point 3 in (indistinct) on the character; it didn't go quite far enough."

15. The learned trial Judge declined to redirect the jury, suggesting that he had covered these matters in their context while he was addressing the jury concerning the conflicts in the evidence presented to them in the course of the trial, the credibility of the witnesses, the fact that the appellant had given evidence and that the jury could have regard to that, as with the other witnesses, in considering the credibility of each.  No reference was, however, made by his Honour to the evidence of the appellant's good character being relevant to her credibility as a witness, as well as going to the issue of her guilt or innocence.

16. No objection was taken by the Crown prosecutor to the admission of evidence of the appellant's disposition, instead of limiting the evidence on this point to evidence of the appellant's reputation.  Evidence of the good character of accused persons has for many years been admitted as going to the issue of their guilt or innocence.  Inescapably, it was not initially admitted to support the credibility of the accused as a witness, because such evidence was held to be inadmissible for that purpose prior to the time when the accused first became a competent witness.

17. The evidence of the good character of the appellant in the present case came from a number of witnesses, including her children, all of whom gave evidence as to their own opinions of the appellant's good character.  This evidence did not relate to her reputation.  In R v Rowton (1865) Le & Ca 520; 169 ER 1497, however, the Court of Crown Cases Reserved held that the opinion of a witness as to his opinion of an accused's character for decency and morality of conduct should not have been admitted, because the witness should only have spoken of the accused's reputation. This has continued to be a matter of some controversy, and the decision in R v Rowton was criticized by Stephen in his Digest of the Law of Evidence, 11th ed (1925) at 187, in which it was said:

    "[A] witness may with perfect truth swear that a man, who to his knowledge has been a receiver of stolen goods for years, has an excellent character for honesty, if he has had the good luck to conceal his crimes from his neighbours.  It is the essence of successful hypocrisy to combine a good reputation with a bad disposition, and according to R v Rowton, the reputation is the important matter.  The case is seldom if ever acted on in practice.  The question always put to a witness to character is, What is the prisoner's character for honesty, morality, or humanity? as the case may be; nor is the witness ever warned that he is to confine his evidence to the prisoner's reputation.  It would be no easy matter to make the common run of witnesses understand the distinction."

18. The practice is also criticised in Cross on Evidence, Australian edition (loose leaf) par 19110, where it is contended that "[t]here is much to be said for abandoning a rule which is difficult to apply, widely ignored and logically unsound."  Notwithstanding this view, the learned editor went on to indicate that "[t]he proper procedure for leading evidence of the character of an accused in a criminal trial is for the witness to assert familiarity with the opinion of the accused's character held generally in the neighbourhood or among some other relevant group of people, and to say that the reputation of the accused among such people is that of an honest man, or as the case may be".  See Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 at 399; and R v Johnson & Edwards (No 2) [1982] Qd R 555 at 560.

19. In Attwood v The Queen (1960) 102 CLR 353, at 359, Dixon CJ, McTiernan, Fullagar, Tailor and Menzies JJ said:

    "The expression 'bad character' in relation to a witness has no technical or legal meaning.  The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce.  He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged.  The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of R v Rowton (1865) Le & Ca 520; 169 ER 1497. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ said: 'The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried' [R v Rowton at 530; 1502]."

20. In R v Trimboli (1979) 1 A Crim R 73, at 74, King CJ, with whose judgment White and Mohr JJ agreed, laid down a number of propositions for the assistance of trial Judges. They were as follows:

    "1It is desirable in all cases in which there is evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put.

    2No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt.  They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged.  The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.

    3The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character.  This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit."

21. King CJ, having referred to the long‑standing practice of the South Australian Supreme Court to direct juries along the lines of Attwood v The Queen, said at 73:

    "Often reference is made to the effect of good character upon the credibility of the accused as a witness or of his explanations of the incriminating evidence.  In most cases disproof of guilt and the credibility of the denial of guilt or innocent explanation are two facets of the same thing.  Occasionally no direction is given as to the use to be made of the evidence of good character.  Like Sholl J in Schmahl [1965] VR 745 at 750, I think that juries left to their own devices and common sense would be likely in most cases to use the evidence in the proper way. Nevertheless, I agree that it is desirable in all cases that an appropriate direction be given, especially where the judge discusses the significance to be attached to other pieces of evidence. In many cases it is essential, and failure to give it will result in a mistrial."

1. He later said:

   "Now, the onus of proof I mentioned at the outset and counsel have reminded you in their addresses that the onus or the burden of proving the elements of each of the offences rests upon the Crown.  That means that [it] is for the Crown to prove the charges against the accused.  There is, in fact, no onus upon an accused person to prove his or her innocence or indeed to prove anything at all.  The onus or burden of proof never shifts to the accused person.  She doesn't have to prove she's innocent.

   It's a cardinal principal of our system of justice that a person is presumed innocent of any charge brought against him or her until that person, by your verdict, is found guilty."

2. His Honour went on to stress again that an accused person is presumed innocent of any charge brought against them until proven guilty and continued:

   "The Crown must prove all the elements of the offence and since the onus of proof rests upon the Crown at all times, there is in fact no obligation upon an accused person to give evidence in their own defence.

   The accused could, if she had chosen, have elected to remain silent and simply put the Crown to proof of its case.  So there's no obligation upon an accused person to give evidence.  In this instance the accused has elected to give evidence in her own defence.  You have had the opportunity of hearing her evidence and of observing her demeanour in the courtroom throughout the trial and in the witness box when she gave her evidence and in cross‑examination.  So she has given evidence and you can, of course take her evidence into account in deciding whether or not the Crown has discharged the onus which rests upon it.

   So she didn't have to give evidence but she has and you can have regard to her evidence in considering whether or not the Crown has discharged its onus.  She has not given evidence because she has to prove anything or prove her innocence.  That would be the wrong approach if you thought that.  She has given evidence in her own defence.  You can take that into account in deciding whether or not the Crown has discharged the onus which rests upon it.  So the onus never shifts from the Crown.

   Secondly, the standard of proof - it's necessary for me to direct you that the standard of proof required in any criminal trial is proof beyond reasonable doubt.  The Crown must prove all the elements of the charges beyond reasonable doubt.  Now, members of the jury, you should accept the words 'beyond a reasonable doubt' in their ordinary commonsense meaning as showing the standard of proof the Crown must reach and you should accept that it is the highest standard of proof known to the law.

   It's different from what we call a civil case.  In this court there are civil cases where somebody might have been injured in a motor vehicle accident or in a work accident and they're suing another driver or an employer for damages, money for personal injuries suffered.  In civil cases the standard of proof is on the balance of probabilities; it is more probable that the accident happened in this way than in some other way.  That's the balance of probabilities.  That is a lesser standard in civil cases.  This is a criminal trial and we're dealing here with the highest standard, beyond reasonable doubt.

   So if at the end of your deliberations you have a reasonable doubt as to any of the necessary elements of the offences, then the Crown has not made out its case and the accused must be acquitted in respect of that particular charge where such doubt exists.  You might have heard the principle expressed in a saying that the accused is to be given the benefit of any reasonable doubt a jury might have.  That expression is perhaps a little misleading because in fact it is no special privilege or concession which is granted to the accused person but rather that it is their right.  It is the accused's entitlement under our law.

   So if you find yourselves in the position of having a reasonable doubt in respect of any charge in the indictment, the Crown has failed to prove the accused's guilt and therefore must be acquitted.  Perhaps I can summarise that as follows:  if after considering all of the evidence in respect of any of the charges, if there remains in your mind a reasonable doubt as to the guilt of the accused in respect to that charge, then the Crown has not made out its case and it would be your duty to return a verdict of not guilty, of acquittal.

   If, on the other hand, having considered all of the material, you are satisfied beyond reasonable doubt of her guilt in respect of any charge, then equally it is your duty to convict by bringing in a verdict of guilty as charged.  Whether you have a reasonable doubt or not is a matter for all of you to decide.  It is only if you are all satisfied beyond reasonable doubt as to the guilt of the accused that a verdict of guilty can be returned."

3. His Honour then went on to discuss the manner in which inferences may be drawn and he emphasised that, where there are competing inferences, before the jury could draw an adverse inference against the appellant, they would have to be satisfied that it was the only inference that could be drawn consistently with the proven facts as they found them to be.  This meant, he instructed the jury, that if there were competing inferences to be drawn, unless they reached the conclusion that such an inference was the only reasonable inference that was open on the evidence, they could not draw the inference against the appellant.  He repeated once again the general rule that the Crown carries the onus of proof and that it must discharge that onus beyond reasonable doubt, adding that, even if the jury did not believe the evidence adduced or relied upon by the defence, they may not assume the guilt of the accused unless they were also satisfied beyond reasonable doubt that the evidence relied upon by the Crown established her guilt.  He also repeated that the onus remained upon the Crown to satisfy them beyond reasonable doubt as to each of the elements of the offence, that the onus never shifted to the accused and that she did not have to prove she was innocent.

4. Counsel for the appellant maintained that the learned trial Judge had "muddied the waters".  In the first passage complained of, his Honour said, "You must look at each charge separately, and determine the guilt or innocence of the accused in respect of each charge individually."  It was claimed for the appellant that the jury were only required to look at each charge separately, and to determine if the prosecution had proved beyond reasonable doubt that the accused was guilty, there being no need to make a determination of innocence.  It is quite clear, however, from the following passage in his Honour's address that he was speaking in terms of the jury returning verdicts of guilty or not guilty.  I am unable to accept that the jury could have been misled, having regard in particular to the repetition of the passages in which his Honour was at pains to emphasise that the Crown carried the burden of proving beyond reasonable doubt each element of each of the offences charged and that the appellant carried no burden.

5. Later in his summing up, his Honour said:

   "Clearly the evidence of the Crown witnesses on the one hand and the evidence of the accused on the other hand are very much in conflict.

   You should appreciate, nevertheless, that your decision involves more than simply deciding whether you believe one or more of the Crown witnesses on the one hand or the accused or one or more of her witnesses on the other hand.  There are in fact three options rather than two.  In the first place, if, on all the evidence, you are satisfied beyond reasonable doubt of the [guilt] of the accused, then of course it is your duty to convict the accused.

   Secondly, if you believe the accused is telling the truth, then you must equally acquit the accused.  Thirdly, if you are left with a reasonable doubt that there is a reasonable possibility that the accused may be telling the truth, if you're left with a reasonable doubt that there's a reasonable possibility that the accused may be telling the truth, then you must acquit the accused.

   In other words, if you can't determine where the truth lies, the accused is entitled to the benefit of the doubt.  Further to that, even if you positively disbelieved the accused, you still could not convict her unless on the whole of the evidence you are satisfied beyond reasonable doubt that she has committed the offence or offences as alleged."

6. At the conclusion of his summing up, counsel for the appellant submitted that the third paragraph above was suggestive of some burden of proof resting upon the accused.  His Honour, having heard the submission, agreed to redirect the jury, which he did in the following passage:

   "Counsel have raised with me a couple of matters which I would wish to mention to you and in part reinforce in your minds.  Firstly in the course of my address this morning, in dealing with each of the charges, I put to you on the one hand the Crown case in respect of the charge and then on the other hand the defence case and I may have said that if you accept the Crown evidence, then it would be open to you to convict and, on the other hand, if you don't accept the accused's evidence so far as a particular matter is concerned, then you could convict, suggesting perhaps that there are only two options for you in considering each of the charges.

   I repeat what I said yesterday in fact, that there are three options in reality.  In the first place if on all of the evidence you're satisfied beyond reasonable doubt of the guilt of the accused in respect to any of the offences, then of course it's your duty to convict.  The second option is that if you believe the accused is telling the truth, then you must of course acquit her and then the third option is that if you are left with any reasonable doubt and remembering also that there's no onus on the accused to prove her innocence - if you are left with a reasonable doubt that there is a reasonable possibility that she is telling the truth, then you must acquit.  In other words, if you can't determine where the truth lies, then the accused is 'entitled to the benefit of the doubt'.

   Then the further extension of that and for completeness I will repeat, as I said yesterday, even if you positively disbelieve the accused, you could still not convict her unless on the whole of the evidence in respect to the particular charge you were considering - unless on the whole of the evidence you are satisfied beyond reasonable doubt that she committed the offence alleged and of course if you found as a fact that she had not told the truth in her evidence, then that would be a matter which you may take into account in assessing whether or not you are satisfied beyond reasonable doubt that the accused had committed the offence."

7. Counsel for the appellant sought to rely upon the decision in R v Moon [1969] 1 WLR 1705 in support of his argument on this ground. That was, however, a very different case from the present. Moon was on trial for assault. He claimed that he had acted in self‑defence and this was the only issue in the case. The Assistant Recorder had directed the jury on numerous occasions in the course of his summing up that the onus of proof of self‑defence was on the accused throughout the trial. This was a fundamental error, as to which the Assistant Recorder appears to have been oblivious. The Court of Criminal Appeal, in the circumstances, considered that the correction made by the Assistant Recorder after the error had been drawn to his attention, did not go far enough. It was said that, in that particular case, it was necessary for the Judge to repeat the direction which he had given, to acknowledge that that direction had been quite wrong, and then to tell the jury to put out of their minds all that they had heard from him up to that moment about the burden of proof. And the Judge should then, in clear terms which would be incapable of being misunderstood, have told the jury very plainly and simply what the law was. It would have been quite inappropriate for the trial Judge to have given such a direction in this case. No such drastic action was required to remedy a minor error in an otherwise plain and simple statement of the onus of proof.

8. It was, I consider, undesirable for the trial Judge to refer to a "reasonable possibility" that the appellant was telling the truth, and so to depart from the time‑honoured formula.  However, having considered the whole of the charge, I do not consider that the jury would, in the end, have had any doubt whatever that it was for the prosecution to prove the guilt of the appellant, that the appellant did not have to prove her innocence, that even if the jury found that the appellant was a liar, the verdict could not be one of guilty unless they were satisfied beyond reasonable doubt that the prosecution had proved its case, and that the appellant was entitled to the benefit of the doubt.  If a doubt existed, howsoever arising, the duty of the jury was to acquit.  I am far from persuaded that there was any risk of the jury's concluding, after they had retired to consider their verdict, that there was any onus resting on the appellant.  I would reject the third and fourth grounds of appeal.

9. The fifth ground of appeal contends that the evidence of Mr F S Kamp and of Mr P C Beekink was insufficient to establish that R & I Trustees Ltd would not have advanced the moneys which it did, had it not been for the false representations of the appellant.  It was further contended that the trial Judge erred in failing to direct the jury that evidence from Board members of the company was necessary to establish that the representations operated on the minds of those members, and that if they had known the true position, they would not have made the loan.

10. In R v Sullivan (1945) 30 Cr App R 132, Humphreys J, delivering the judgment of the Court, said, at 136:

    "It is, we think, undoubtedly good law that the question of the inducement acting upon the mind of the person who may be described as the prosecutor is not a matter which can only be proved by the direct evidence of the witness.  It can be, and very often is, proved by the witness being asked some question which brings the answer:  'I believed that statement and that is why I parted with my money'; but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence."

11. In R v Tirado (1974) 59 Cr App R 80, at 87, the Lord Chief Justice, Lord Widgery, said:

    "In the ordinary way when a charge of this kind [obtaining property by false pretences] is before the Court it is the duty of the prosecution to bring before the Court the parties said to have been deceived in order that they can say on their oath that they were deceived and in order that they can be cross‑examined by the defendant's counsel."

12. That was an unusual case in that the complainants who alleged that they had been defrauded were overseas and could not be brought back into the United Kingdom in order to give their evidence.

13. In R v Laverty [1970] 3 All ER 432, the charge was one of obtaining property by deception. The onus was on the Crown to show that the false representation acted on the mind of the purchaser of a car. At 434, Lord Parker CJ said:

    "This court is very anxious not to extend the principle in R v Sullivan (1943) 30 Cr App R 132 more than is necessary. The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed, and further it seems to the court in the present case that no jury could say that the only inference here was that Mr Bedborough parted with his money by reason of this false representation. Mr Bedborough may well have been of the mind as he stated he was, namely that what operated on his mind was the belief that the appellant was the owner. Provided the appellant was the owner it may well be that Mr Bedborough did not mind that the car did not bear its original number plates. At any rate as it seems to the court, it cannot be said that the only possible inference here is that it actuated on Mr Bedborough's mind."

14. The judgment referred to, R v Sullivan (supra), was treated as being a case in which the only inference that could be drawn was that the false representation operated on the victim's mind.  The court did not accept in R v Laverty that such an inference could have been drawn in the appeal before it.

15. Subsequently, in R v Rozeik [1996] 1 Cr App R 260, it was held by the Court of Appeal that the question before it was not whether any employee of the company was deceived, but whether an employee whose state of mind stood as that of the company knew of the falsity of the transaction since, if such an employee knew, the company also knew, and if the company knew, it did not matter how many fellow employees were personally deceived. In its reasons, the court referred to In re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456, in which the issue was whether a company should be held to be in breach of an injunction in circumstances where some of its employees had disregarded the injunction, contrary to the instructions of senior management. The company was held to be liable. Lord Templeman explained the reason for this conclusion succinctly, saying at 465:

    "An employee who acts for the company within the scope of his employment is the company.  Directors may give instructions, top management may exhort, middle management may question and workers may listen attentively.  But if a worker makes a defective product or a lower manager accepts or rejects an order, he is the company."

16. The Court of Appeal also cited Meridian Global Funds Management Asia Pty Ltd v Securities Commission [1995] 2 AC 500, in which Lord Hoffmann, delivering the opinion of the Privy Council considered the problem of attributing knowledge to a company. At 507, his Lordship said:

    "… there will be many cases … in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention.  In such a case the court must fashion a special rule of attribution for the particular substantive rule.  This is always a matter of interpretation:  given that it was intended to apply to a company, how was it intended to apply?  Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company?  One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy."

17. The Court of Appeal, in  R v Rozeik, having referred to the foregoing authorities, said at 263:

    "In respect of each count in the indictment the property belonging to a finance company which was dishonestly obtained was a cheque.  For the purpose of ascertaining whether the cheque was obtained by a deception it is necessary to consider the state of mind of the person by whom it was furnished on behalf of the company."

18. At 265, the Court went on to say:

    "Whether or not a company is fixed with the knowledge acquired by an employee or officer will depend on the circumstances.  It is necessary first to identify whether the individual in question has the requisite status and authority in relation to the particular act or omission in point:  El Ajou v Dollar Holdings Plc [1994] 2 All ER 685, 696. It follows from this that information given to a particular employee, however senior, may not be attributed to the company if that employee is not empowered to act in relation to that particular transaction. An employee who acts for the company within the scope of his employment will usually bind the company since he is the company for the purpose of the transaction in question – see per Lord Templeman in the Ready Mixed Concrete case (supra) at 465."

1. The judgment continued, at 266:

   "In cases in which the company is the victim, the person or persons who stand for its state of mind may differ from those who do so in cases in which a company is charged with the commission of a criminal offence.  The latter are less likely to represent what Viscount Haldane called 'the directing mind and will of the company'.  In DPP v Ray (1974) 58 Cr App R 130, [1974] AC 370 the defendant was charged with dishonestly obtaining by deception a pecuniary advantage in the form of a meal for which he evaded payment. It was the waiter who was held to have been deceived, and the position would have been no different had the deception been perpetrated in a restaurant run by a company rather than a local Chinese restaurant which may not have been."

2. The court then indicated that the question was not whether any employee of the company was deceived, but whether any employee, whose state of mind stood as that of the company, knew of the falsity of the transaction, since if he or she did know, the company also knew.

3. Mr Kamp was relevantly a person of status and authority in R & I Trustees Ltd.  He had recommended to the Board that the loan to the applicant should be approved.  In doing so, he had recommended that the special conditions which he set out in his memorandum to the Board should be incorporated in the Board's approval.  It was then left to him to ensure that the special conditions were complied with and that the securities offered were acceptable.  He was the recipient within the company of the false information.  The matter did not, on the evidence, go back to the Board, but was left in the hands of Mr Kamp.  He was, for that purpose, the directing mind and will of the company.  Some of the securities were rejected after they had been checked out and, as a consequence, the amount of the loan was reduced from $850,000 to $560,000.  This was a decision made by Mr Kamp.  I have already set out the passages in Mr Kamp's evidence in which he indicated what his reaction would have been had he known the true position with respect to the various securities offered.  This was, I consider, a case in which the only inference which could reasonably be drawn was that Mr Kamp would not have allowed the loan to be proceeded with if he had known the true position.  I would dismiss the fifth ground of appeal.

4. The sixth ground of appeal contends that the evidence of Roma Gaglio was insufficient to sustain a conviction on count 5, as her evidence was not to the effect that, had she known the true position, she would not have given her authority for the money to be disbursed to the appellant.  In my opinion, on the basis of the evidence of Mrs Gaglio previously set out, the jury were entitled to accept it and to find the appellant guilty.  There was clear evidence from her that, had she known the true position, she would not have given her authority for the money to be paid to the appellant.  She was prepared only to have what had been her entitlement to half the net proceeds from the sale of the family home applied by the appellant in the payment of accounts for which she and her husband had responsibility.  That was as far as she went.  It is apparent that her share in the proceeds of sale was in fact applied towards the sum of $50,000, which the Waldrons were required to pay as a term of the vendor's extending the time for compliance with the notice of default in March 1992, this having been necessitated by the appellant's using for her personal benefit the money paid to her by the Waldrons towards the purchase of the unit at Bibra Lake.  I do not consider that the slightly ambiguous authority, which was written out by the appellant and given to Mrs Gaglio to sign, required a different conclusion.

5. Furthermore, I am unable to accept that s 22 of the Criminal Code, which relates to criminal responsibility for an act done with respect to property in the exercise of an honest claim of right and without intention to defraud, had any application in this case. The issue for the jury was whether there was an agreement between Mrs Gaglio and the appellant as to the application of Mrs Gaglio's share in the proceeds of sale of the house and, if so, what the terms of that agreement were. There had admittedly been a concluded agreement regarding Mrs Gaglio's entitlement to half the proceeds and the essential question was whether Mrs Gaglio had agreed to the appellant's applying the proceeds otherwise than in payment of the outstanding accounts which Mr and Mrs Gaglio had incurred. If the jury accepted the evidence of Mrs Gaglio, as they must have done to arrive at their verdict, there was no room for the application of s 22. I would dismiss this ground of appeal.

6. I note that the settlement statement relates to the proceeds of sale of the factory premises as well as the family home.  Nothing, however, turns upon this, the matter having proceeded on the basis that the credit of $23,049.64 in favour of Mrs Gaglio in the statement related to her share of the proceeds of sale of the home.

7. The seventh ground of appeal contends that the learned trial Judge should have directed the jury that it was for them to decide whether or not Mr Corena and Mrs Tailor were accomplices or not by reason of their having "participated" in the rescue plan and the loan application and that if they found Mr Corena and Mrs Tailor to be accomplices, then it would be dangerous to convict on their evidence alone without corroboration.

8. Section 50 of the Evidence Act 1906 (WA) now provides that, on the trial of a person on indictment for an offence, the trial Judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment, and further provides that the Judge shall not give a corroboration warning to the jury unless he or she is satisfied that such a warning is justified in the circumstances.  In this section, "corroboration warning" in relation to a trial is defined to mean a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

9. Counsel for the appellant did not request the giving of a corroboration warning and, indeed, there seems to have been no consideration at all given to this matter in the course of the trial.

10. In Davies v Director of Public Prosecution [1954] AC 378 at 400, Lord Simonds LC pointed out that there was no formal definition of the term "accomplice", but he went on to specify three classes of persons who, if called as witnesses for the prosecution, were to be treated as falling within the category of an accomplice. As to the first class, he said:

    "On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours).  This is surely the natural and primary meaning of the term 'accomplice'."

11. The two other classes of persons discussed by the Lord Chancellor as coming within the category of accomplices are not relevant in the present case.

12. In my opinion, a jury properly instructed on the meaning of the term "accomplice" could not reasonably have come to the conclusion that Mr Corena and Mrs Tailor were accomplices.  They had no contact with R & I Trustees Ltd.  They had no knowledge of the terms of the application made by the appellant to that company.  They were not trying to deceive the company in any respect.  They were in fact themselves being deceived by the appellant.  Furthermore, they were placing themselves seriously at risk, although they probably did not realise this.  Unfortunately, both Mr Corena and Mrs Tailor appear to have been accustomed to signing documents without understanding their terms or, in many instances, reading them.  Each of them claimed to have been rushed by the appellant into signing documents as a matter of urgency and each of them dealt with a solicitor who was the solicitor for the appellant.  In my opinion, Mr Corena and Mrs Tailor who, on the evidence, were not in any way associated with one another in respect of the offence charged in count 4 of the indictment and there was no requirement for the learned trial Judge to give a corroboration warning.  The learned Judge could not have been satisfied that a corroboration warning was justified in the circumstances and accordingly it was not open to him to give a warning.  There is, in my view, no substance in this ground of appeal.

13. For the foregoing reasons, I joined in dismissing the appellant's appeal against her convictions.

14. The particulars set out in the application for leave to appeal against the sentences, in my opinion, carried only a limited weight in the circumstances of this case.  In relation to the overall sentence, they were as follows:

    (a)The applicant was aged 52 at the time of sentencing and was of previous good character.

    (b)There was no victim impact statement from Mrs Waldron, Mrs Tailor, Mrs Gaglio, Mr and Mrs Corena or [R & I Trustees Ltd].

    (c)The learned trial Judge erred in failing to give any or any adequate weight to the fact that the applicant was financially ruined by the events that brought her to court and on release from prison would no longer be able to work as a real estate agent or in any position of trust and her employability was negligible.

    (d)The learned trial Judge erred in failing to give any or any sufficient weight to the fact that the applicant was not at risk of reoffending.

    (e)The learned trial Judge erred in failing to give sufficient weight to the favourable background and antecedents of the applicant.

    (f)The learned trial Judge failed to give any or any sufficient weight to the fact that the applicant's role as a mother of three children was essentially extinguished for such lengthy periods by such a sentence.

    (g)The learned trial Judge erred in imposing a sentence more appropriate to crimes of dishonesty on a grand scale rather than a $250,000‑$300,000 case.

    (h)The learned trial Judge erred in failing to take into account adequately, or at all, the state of the applicant's health, her family situation or her inability to gain employment on release from prison.

    (i)The learned trial Judge failed to take into account adequately, or at all, the stress and strain of the past five years on the applicant and the fact that the applicant has already suffered considerable shame, loss of face and financial ruin.

    (k)The learned trial Judge failed to give any or any sufficient weight to the matters set out in her letter to the learned trial Judge.

15. In relation to the sentence of 5 years' imprisonment on count 4, the applicant repeated the foregoing particulars and added:

    (a)The R & I Trustees Ltd [was] repaid most of the $560,000 loan and the shortfall of $78,000 was not pursued by the bank as it decided that it was not worth pursuing.

    (b)Mr and Mrs Corena retained their properties at Jecks Street, Rockingham and Grenadier Drive, Thornlie, along with others put forward as security for the loan.

    (c)5 years' imprisonment, when the maximum was 7 years, is excessive in the circumstances where the bank lost only $78,000 and only then as it did not pursue its security.

    (d)The applicant put forward her interest in her properties at Kingsmill Gardens, Winthrop and Gibson Street, Mount Pleasant to repay the loan.

16. The learned trial Judge, in determining the appropriate sentence, had careful regard to the decision of this Court in R v Birch (1993) 69 A Crim R 181 in which a number of the leading authorities were considered and approved, including, in particular, R v Barrick (1985) 81 Cr App Rep 78 and Stockbridge, unreported; CCA SCt of WA; Library No 6798; 23 July 1987.  And see also R v Carreras (1992) 60 A Crim R 402 at 407. In R v Barrick, the English Court of Appeal took the opportunity of making some general observations regarding the proper sentence to be passed in respect of certain types of theft and fraud.  At 81 the Lord Chief Justice, Lord Lane, indicated that the type of case with which the Court was concerned was where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, had used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money.  As his Lordship indicated, he will usually be a person of hitherto impeccable character and it is practically certain that he will never offend again, and in the nature of things he will never again in his life be able to secure similar employment with all that means in the shape of disgrace for himself and also his family.  He continued at 81 ‑ 82:

    "In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small.  Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence."

17. He went on to say that the sum involved is obviously not the only factor to be considered, but that it may in many cases provide a useful guide.  Some of the matters to which the Lord Chief Justice referred are highly relevant in the present case.  They included:

    (i)the quality and degree of trust reposed in the offender;

    (ii)the period over which the fraud or the thefts have been perpetrated;

    (iii)the use to which the money or property dishonestly taken was put;

    (iv)the effect upon the victim;

    (v)the impact of the offences on the public and public confidence;

    (vi)the effect on the offender himself;

    (vii)the offender's own history;

    (viii)those matters of mitigation special to the offender.

    (ix)any help given to the police.

18. The learned trial Judge gave very careful and detailed consideration to the sentences which he imposed.  He had the considerable benefit, which this Court has not had, of seeing and hearing the appellant, as well as a number of those who have suffered financially and emotionally as a consequence of her unlawful conduct.  That conduct extended over a period of time just in excess of two years and three months. 

19. The appellant displayed, as the trial Judge found, a blatant disregard for the interests of those whom she was purporting to help, and who had placed their trust in her and relied upon her judgment.  None of the individuals who were the victims in counts 1, 2, 3, 5 and 6 was sophisticated or experienced in the field in which the appellant was operating.  She determinedly set out to advance her own interests at the expense of the interests of her victims.

20. The total amount involved in the six counts was approximately $795,000.  Some of this money went to cover her own bank overdrafts.  Some of the money was recycled to cover up the fact that she had stolen money during the period covered by her offences.  And some of the money was misguidedly dissipated in her efforts to build up a property or business empire, which appears to have been her personal ambition.

21. There is some doubt as to the precise amount lost by her victims as a result of the appellant's activities.  It appears to have been between $250,000 (the appellant's estimate) and $302,000 (the Crown's estimate).  As his Honour remarked, on whatever view one takes, it is a substantial sum of money which has been either stolen or fraudulently obtained.

22. His Honour had regard to the  relevant mitigating factors relating to the appellant's upbringing and to her future personal life.  He also had regard to the contributions which she had made in the past to the

community and to her family.  Her children are now adults.  Her daughter is independent and her two sons are living with their father.  The fact that the appellant may have been previously of good character and that she is not at risk of reoffending is a common feature of these cases, as is the fact that the appellant will not be able to secure similar employment in the future.  The appellant's health is not a major consideration in this case.  Other factors addressed by the appellant's counsel were the result of her own dishonest conduct.

1. In her letter to the learned trial Judge, to which reference is made in the appellant's application for leave to appeal against her sentences, she deals almost exclusively with matters personal to her.  The only reference to the victims of her crime was the following paragraph:

   "One of the things that saddens me immensely is the fact that the people who are now so against me are the very people I trusted and cared for.  It was these very people that came to me for help, and they believed I could help them build an empire."

2. Clearly, the appellant did not accept her guilt but endeavoured to throw the blame upon those who have suffered as a result of her offending.  No reference is made to Mrs Tailor, who the appellant herself admitted is still owed the sum of $60,000 and who is, no doubt, unlikely to be able to recover any portion of it from the appellant.  The Corenas faced the prospect of losing both of their properties, but in the end, R & I Trustees Ltd decided against proceeding to litigation and its claim was settled, with the Corenas paying to the company the sum of $10,000.  The harm caused to the Waldrons and to Mrs Tailor has already been discussed.

3. I am satisfied that the learned sentencing Judge paid full regard to the relevant considerations in determining the appellant's sentences.  Although, in my opinion, the overall sentence was at the top end of the range, as was the sentence on count 4, I was not persuaded that his Honour fell into error.  I joined in granting the appellant leave to appeal against her sentences, and I also joined in dismissing the appeal.

4. OWEN J:  I have read the reasons of the Hon Justice Kennedy.  I am in agreement with those reasons and have nothing further to add.

5. STEYTLER J:  I have had the advantage of reading, in draft, the reasons for decision of Kennedy J.  I agree with them.  They reflect my own

reasons for joining in the decision to dismiss the appellant's appeal against her convictions and to grant the appellant leave to appeal against her sentences but to dismiss that appeal.